6.  The applicant company was registered in Malta on 7 June 1979. Its registered address is in Fgura, Malta.
7.  In July 1984 A., on behalf of the applicant company, and a third party, C., purchased approximately 4,500 sq. m of land in Ghaxaq. The deed of sale referred to the land as a “field”. According to the applicant company, the land was a building site under the provisions of the Building Development Areas Act 1983 (the 1983 Act), as it had a frontage on a public road and was situated within 120 m of a built-up area.
8.  In August 1984 an application was lodged in the name of the co‑owner C. with the Works Department (to be examined by the Planning Area Permits Board (“the PAPB”), the body entrusted with assessing building applications) for permission to build several garages with upper floors (mezzanini) on the land.
9.  On 6 September 1985 the applicant company purchased C.’s share and became the sole owner of the land. The PAPB was not informed of that change at the time.
10.  At a meeting on 10 July 1986 the PAPB approved the application to develop the land as per the plans submitted, subject to the payment of road contribution costs. The relevant minutes read as follows:
“There would be no objection to the erection of garages for private cars with overlying dwellings subject to conditions on Form TH and as per plans submitted”.
The applicant company explained that, generally, once the PAPB had approved an application, notification would be made to the contribution section of the Works Department, which would issue a bill and send the relevant file to the cash office to await payment. Upon payment, a receipt would be issued for presentation to the contribution section, which in turn would notify the PAPB that the bill had been paid (clearance). The PAPB would then issue the relevant permit containing the conditions for development.
11.  Subsequently the applicant company started developing the land by building on it.
12.  On 5 May 1987 the road contribution bill was sent to C. On 15 June 1987 a final notice in respect of the bill was sent to C. No payment ensued. A minute, registered in the file, dated 30 June 1987, stated that a “permit has not been issued as applicant failed to pay the contribution bill and works are in hand”. As the bill remained unpaid, in July 1987 C. was sent a letter of warning informing him that the construction undertaken was not covered by a permit.
13.  On 14 July 1987 the applicant company asked its architect to verify matters in relation to the permit with the PAPB. According to the architect, his queries and a request for a copy of the relevant contribution bill remained unanswered as the file concerning the application had been transferred to the Attorney General’s office in connection with the institution of criminal proceedings.
14.  On 25 March 1988 Act X of 1998, namely the Building Permits (Temporary Provisions) Act (“the 1998 Act”) was enacted to regulate the granting of building permits. Article 10 of that Act repealed the 1983 Act, except for the provisions relating to building permits granted prior to the enactment of the new legislation. The 1988 Act introduced temporary building schemes until local plans for building were put in place by Parliament.
15.  On 17 January 1992 the Development Planning Act (“the 1992 Act”) introduced extensive changes to the law on issuing permits, inter alia, by establishing the Planning Authority (“the PA”). Section 63 repealed those parts of the 1983 Act that were still operative. Most of the provisions of the 1992 Act entered into force on 28 October 1992 but section 63 did not enter into force until 1 December 1992.
16.  In May 1992 the Director of the Public Works Department sent C. a reminder regarding the outstanding bill, giving him twenty-four hours to pay. Later that month, the Director of the Public Works Department asked C. to make payment by means of a judicial letter. No payment ensued.
17.  On 26 August 1992 a fresh bill (amounting to 7,962 euros (EUR)) was issued to enable the relevant permit to be granted. The bill was again sent to C., who had originally applied for the permit. On an unspecified date C. passed the bill on to A. as the representative of the applicant company, who paid it on 14 December 1992. The contributions department issued clearance in respect of the application.
18.  On 31 December 1992 the Development Permission (Method of Application) Regulations entered into force (see Relevant Domestic Law) by means of Legal Notice 133 of 1992.
19.  In 1993 the PAPB ceased to exist and the PA (eventually called the Malta Environment and Planning Authority (“the MEPA”)) was set up. Its Development Control Commission (“the DCC”) was entrusted with the issuing of permits (see Relevant Domestic Law). On 26 January 1993 the applicant company’s architect submitted a “Notice for Consideration by the PA” form in accordance with the transitional arrangement for PAPB applications. The form indicated C. as the owner.
20.  It appears from the minutes dated 18 March 1993 (in the file relating to the permit application) that following payment, the PA was reluctant to issue the permit since it had not been approved while the ex-PAPB chairman had been in office. The file was subsequently transferred from one person to another without any action being taken until 17 September 1993, after which date the file was misplaced.
21.  On 4 August 1995 the applicant company’s architect contacted the authority in connection with the permit. The architect received a reply asking him to submit a copy of the site plan indicating the site in question, as the application could not be traced. The requested document was duly supplied and received by the authority, but no further action was taken.
22.  In a letter dated 16 May 1996 the applicant company’s newly appointed architect asked the Chairmen of the DCC to issue the relevant permit, in respect of which clearance had been issued by the contributions department. By means of the same letter she informed the authority that the applicant company had acquired the property in its entirety and she attached the relevant documentation. Following the instructions received by the DCC personnel to the architect, to the effect that the request had been forwarded to G.C. for his perusal as necessary, on 2 August 1996 another letter was sent by the architect to the Planning Directorate for the attention of G.C. namely, the manager within the Development Control Unit (“DCU”), enquiring about the outcome of the application. In his letter dated 7 October 1996 G.C. informed the applicant company’s architect that the permit could not be issued because at the time of the payment in 1992, the bill of 1986 had fallen through. The letter further stated that:
“the clearance referred to [in your letter] was subsequent to a clear decision not to accept payment six years after the billing. I trust the above information is sufficient for your guidance”.
23.  Between 1996 and 1999 various meetings took place between the applicant company and the PA (by then called MEPA). However, the latter did not indicate whether or not it would grant the applicant company the relevant permit. Following the authorities’ failure to respond to a letter of 17 February 1999 soliciting action on the matter, on 15 June 1999 the applicant company filed a judicial protest (see below).
24.  In the meantime, in August 1987 the Public Works Department asked the Commissioner of Police to institute proceedings against the applicant company for illegal construction. Criminal proceedings started in April 1988 but were suspended in November 1998 without judgment.
25.  On 15 June 1999 the applicant company lodged a judicial protest against the MEPA requesting that the relevant permit be issued and holding it responsible for damages resulting from the delay in issuing it.
26.  On the same day the MEPA issued a stop notice in relation to the development of the land.
27.  On 5 July 1999 the applicant company lodged an appeal before the Development Appeals Board (“the DAB”) against the stop notice. By a judgment of 20 August 2003 the DAB rejected the appeal, holding that the PAPB had never issued a permit and that the recommendation of the PAPB together with approval from the sanitary engineering officer and the Aesthetics Board did not equate to a permit to build. The issuance of the contribution bill before the issuance of the permit was simply an administrative practice and the payment of that bill could not be equated to, and did not automatically lead to, approval or the issuance of a permit. The DAB therefore concluded that the development to which the stop notice applied was not covered by a permit as the application submitted had been refused. No proof had been submitted that some other permit had been issued or that the applicant company had tried to rectify that position.
28.  On 3 September 2003 the applicant company appealed to the Court of Appeal. On 24 June 2004 the appeal was dismissed, as the grounds for appeal had not been on points of law.
29.  During the appeal proceedings it transpired that the MEPA considered the letter sent by G.C. in October 1996 as a refusal to issue the permit. That decision had, by then, become final since the time-limit for lodging an appeal of thirty days, from the date of the decision, had lapsed.
30.  On 23 September 2004 the applicant company instituted constitutional redress proceedings. It complained that the authorities’ failure to issue the relevant permit, the subsequent stop notice and the way in which the permit was rejected, namely without a proper decision, which had also denied it the opportunity to contest that decision, had violated its rights under Article 6 (access to court and length of proceedings) and Article 1 of Protocol No. 1 to the Convention.
31.  By a judgment of 29 September 2009 the Civil Court (First Hall), in its constitutional competence, rejected a plea of non-exhaustion of ordinary remedies and took cognisance of the case on the merits. It noted that the MEPA’s objection in that respect had not mentioned which remedies the applicant company had failed to exhaust. Indeed, the applicant company appeared to have availed itself of the remedies made available by the MEPA, even though it had not considered the letter of 7 October 1996 as an official refusal. It had, moreover, taken judicial action to challenge the stop notice issued against it and any other proceedings that might have been available were not adequate remedies for the purposes of the applicant company’s complaints. They therefore deserved to be examined by the tribunals of constitutional competence.
32.  As to Article 1 of Protocol No. 1, the court considered that the applicant company possessed only the land it was developing, but could not claim to possess any permit to develop it. The applicant company was aware that it was building without a permit and had failed to request to rectify that position. The court considered that the State had the power to disallow the building of property without a permit in order to ensure that developments conformed to planning regulations that were in the public interest. A decision to demolish a building without a permit was therefore a proportionate remedial action. Moreover, it held that the payment of the road contribution bill did not entail the automatic issuance of a permit – indeed, more recently, a part of that payment was required on lodging a planning application.
33.  As to Article 6, the court considered that the State had an obligation to provide access to courts to contest an administrative decision concerning civil rights and obligations. Nevertheless, in the applicant company’s case, the lack of a decision on whether to grant a permit did not deny it access to a court since, even before the letter of 1996 was sent, the applicant company could have brought proceedings before the ordinary tribunal contesting the MEPA’s behaviour. After receiving the letter of 1996, the applicant company had even more grounds for doing so, as it had complained that the authority issuing that letter did not have the competence to do so. It followed that the applicant company could not blame the authorities as it was the applicant company that had failed to take up such a remedy, which would have satisfied Article 6 requirements. As to the complaint that the MEPA had taken an unreasonable length of time to issue a decision on the application, the court considered that the MEPA was not a tribunal for the purposes of the Convention. It followed that no violation could ensue.
34.  By a judgment of 25 February 2011 the Constitutional Court upheld the first-instance judgment. It reiterated that the applicant company had not been issued with a permit, so it could not claim to have a possession. Referring to the DAB’s finding of 20 August 2003, it was of the view that the permit had been refused because development work had been carried out before a permit had been granted and the contribution bill had not been paid. The PAPB’s decision of 1986 had only been a recommendation, which, moreover, required the Minister’s further approval. Payment of the road contribution did not oblige the MEPA to issue a permit, particularly given the delay in payment. Therefore, the applicant company had no legitimate expectation of ever being granted a permit.
35.  Viewing the matter from another perspective, the court considered that the applicant company owned the land, so both the process of applying for a permit and the authorities’ failure to issue one had been an interference with the applicant company’s property rights as it constituted a control of use of such property. The requirement to apply for a permit was a measure in accordance with the law and in the public interest, with the legitimate aim of ensuring rational development while safeguarding the environment in the country. Thus, the measure was undoubtedly proportionate. Similarly, the failure to issue a permit for the reasons mentioned above was also in the public interest and pursued legitimate aims such as respect for the rule of law. The same applied to the stop and enforcement notice issued by the authority.
36.  As to Article 6, which was applicable to the present case, the court considered that the DCU manager’s letter had been sent using the authorities’ letterhead and on behalf of the authority to the applicant company’s architect, who made no attempt to appeal against such a decision (under section 37 of the Development Planning Act); nor had any other judicial proceedings been instituted. In the court’s view, the letter of 7 October 1996 undoubtedly contained elements allowing the applicant company to understand that his permit application had been refused and therefore allowing the company to bring an appeal before the PAB and if necessary a further appeal before the Court of Appeal. Moreover, since the applicant company had complained that the letter was an abuse of the powers conferred on G.C., it could also have requested a judicial review. Nevertheless, it remained passive and inert.
37.  On 15 March 2007, during these proceedings, the Constitutional Court rejected the applicant company’s request to submit further evidence to substantiate its discrimination complaint, since the appeal application had not made reference to any such complaint.
38.  In the meantime, in 2006 the MEPA approved the South Malta Local Plan, according to which the applicant company’s property fell outside the development zone. The applicant company submitted documentation supporting its argument that the site was surrounded by developments which fell outside the new development zone but which had been approved by successive authorities.
39.  The sum paid by the applicant company in contribution costs (approximately EUR 7,970) has not been refunded by the authorities.